Defendant Seeks to Withdraw his Plea

On 6 July 2006, defendant was arrested and charged with Criminal Sale of a Controlled Substance in the Second Degree, Criminal Possession of a Controlled Substance in the Third Degree and Criminal Possession of a Weapon in the Fourth Degree. On 13 September 2006, defendant was arrested and charged with Criminal Possession of a Weapon in the Fourth Degree. In both instances, defendant was represented by lawyer-one. On 31 October 2006, defendant met with an ADA (the person herein complained of) outside the courthouse, and in November 2006, defendant fired lawyer-one and hired lawyer-two to represent him. On 8 December 2006, defendant and lawyer-two met with the ADA assigned to the case to negotiate and execute a plea and cooperation agreement. Pursuant to the agreement, defendant was required to perform various duties, including but not limited to: testifying against co-defendants, making controlled buys of controlled substances, engaging in taped telephone conversations, and providing information to support the issuance of search warrants.

On 27 December 2006, pursuant to the plea agreement, defendant pled guilty to the charges of Criminal Sale of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Seventh Degree and to a violation of probation for a previous offense and received time served. In exchange for his guilty plea, defendant was promised a sentence of no more than seven years imprisonment and two years post-release supervision. A New York Criminal Lawyer said under the agreement, based upon the extent and nature of defendant’s cooperation, defendant may be permitted to withdraw his guilty plea and re-plead to a lesser charge. If that occurred, the Queens County District Attorney’s Office may recommend any sentence permissible by law based upon the nature and extent of defendant’s cooperation. Conversely, the Queens County District Attorney’s Office also had discretion to terminate the cooperation agreement and ask the Court to sentence defendant to seven years imprisonment, the maximum term permissible under the plea agreement.

When defendant appeared in court to accept the plea agreement, he was asked whether any other promises had been made to him, other than those specifically enumerated during the proceeding, to which defendant replied no. He was then advised that if he were to commit a new crime, he could be sentenced to the maximum term of imprisonment under the plea agreement, a seven year determinate sentence with two years post-release supervision, to which he agreed.

Sometime in December 2007, one year after defendant’s plea, defendant fired lawyer-two and hired lawyer-three, who made the motion in issue.

On 28 December 2007, defendant was arrested and charged with Attempted Murder in the Second Degree, Assault in the First Degree and other related crimes.

Defendant now moves pursuant to County Law § 701 for the appointment of a Special Prosecutor to investigate his allegations of misconduct by the Queens County District Attorney’s Office and specifically the ADA (hereinafter ADA) whom he met with outside the courthouse on 31 October 2006. Defendant further requests that the Court vacate defendant’s plea or in the alternative, stay sentencing until a Special Prosecutor is appointed to investigate the matter, and sanction the Queens County District Attorney’s Office. Defendant contends that his plea must be vacated and a Special District Attorney appointed, based upon the misconduct of the ADA on behalf of the Queens County District Attorney’s Office. First, defendant claims that his plea was not knowing and voluntary, as it was based upon his mistaken belief that he would ultimately receive a misdemeanor conviction and a non-jail sentence; that such belief was based upon his conversations with the ADA, who he alleges arranged for him to retain lawyer-two as his counsel in exchange for a reduced plea and sentence; and that had he not received this misinformation from the ADA, he would not have pled guilty to the felony charges and consented to the cooperation agreement with the Queens County District Attorney’s Office.

Second, a Bronx Criminal Lawyer said the defendant also seeks appointment of a Special District Attorney to investigate the Queens County District Attorney’s Office and represent the prosecution in the case against him; that the ADA’s misconduct occurred while she was a representative of the Queens County District Attorney’s Office, and therefore he cannot be fairly prosecuted by that office; that he acted in good faith to comply with the terms of the cooperation agreement and that he was misled by the ADA into believing his actions would result in a non-jail sentence; that, as the ADA’s actions were on behalf of the Queens County District Attorney’s Office, such office cannot be considered impartial and should not be permitted to pursue the cases against defendant; and that sanctions should be awarded against the Queens County District Attorney’s Office.

The People oppose defendant’s motion.

The Issues:

The questions to be resolved by the court are: whether or not defendant should be permitted to withdraw his plea; whether or not a Special District Attorney should be appointed; and whether or not the Queens County District attorney’s office should be sanctioned.

The Ruling:

The issue of whether or not defendant should be permitted to withdraw his plea based upon the allegations against the ADA is a separate matter to be determined by the court. On the other issues, the Court finds that defendant failed to establish sufficient grounds to appoint a Special District Attorney or to award sanctions against the Queens County District Attorney’s Office.

As a general rule, courts should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence. Actual prejudice or substantial risk of abuse of confidence may arise from evidence of personal connections between the District Attorney and the defendant, or an intimate knowledge of the facts of the matter and a personal stake in the outcome of the prosecution. However, a New York Sex Crimes Lawyer said the mere appearance of impropriety, standing alone, is insufficient to warrant disqualification of a constitutional officer from his elected position. Rather, the evidence must demonstrate that there is actual prejudice or so substantial a risk thereof that it cannot be ignored.

Here, the court finds that defendant failed to present sufficient evidence to demonstrate actual prejudice or a substantial risk of an abuse of confidence. Defendant failed to prove his allegation that the actions of one ADA impugn the integrity of the whole office. Defendant simply relied on the theory that the ADA offered him a better deal than the agreement proffered by the ADAs responsible for prosecuting him, and therefore he was prejudiced. Such argument is unwarranted.

Moreover, the court finds that defendant failed to demonstrate that the ADA’s actions misled and prejudiced him. Defendant and his attorney voluntarily met with the ADA and he agreed to comply with various terms of cooperation in exchange for a lesser sentence. Defendant’s prior criminal history provided him with knowledge and an understanding of the possible consequences of the charges against him and gave him an incentive to execute the plea and cooperation agreement. Defendant pled guilty in open court and agreed to the terms of the plea agreement and cooperation agreement, without hesitation. At no time did he inform the ADA or the Justice of the Court that other promises were made to him by the ADA. If defendant was confused or unclear as to the terms of his guilty plea, he had ample opportunity to discuss these with his counsel and express his concerns to the court. Instead, he waited almost one year before presenting his allegations regarding the ADA and over one year to move for the appointment of a Special District Attorney. Obviously, the plea agreement conferred a significant benefit to defendant as he was no longer subject to the lengthy prison sentence that could have resulted from the criminal charges he faced. Based upon the numerous charges against him, defendant could have been sentenced to a maximum combined term of seventeen years imprisonment. However, the agreement reduced his maximum sentence by over one-half, and also permitted the Queens County District Attorney’s Office to consent to a plea to a lesser charge and sentence, based upon defendant’s cooperation. Thus, the court finds that defendant failed to prove that the plea and cooperation agreement resulted in actual prejudice to him.

Furthermore, the court finds that defendant failed to demonstrate that a substantial risk of abuse of confidence would result if a Special District Attorney is not appointed. There is no evidence that the Queens County District Attorney has a clear conflict of interest or a personal stake in the outcome of defendant’s prosecution to warrant disqualification. While the ADA may be called to testify in further proceedings, there is no evidence that she was or will be a material witness in the criminal investigations involving defendant or that she would be called to testify at any prosecution of defendant. Thus, the court finds no evidence that a substantial risk of abuse of confidence would result in denying defendant’s motion.

What is more, the court finds that defendant failed to prove that any misconduct by the ADA warrants the disqualification of or sanction against the entire Queens County District Attorney’s Office. Defendant seeks to disqualify the office solely based upon the actions of the ADA. However, there is no evidence that her alleged misconduct pervaded the investigation and prosecution of defendant’s case. Defendant failed to prove that the ADA informed the assigned prosecutors of her alleged relationship with defendant or her alleged promises to him. Defendant presented no evidence that the ADA was present during his plea negotiations with the other ADA or that her alleged promises were discussed during their two-hour meeting. He also failed to demonstrate that the ADA exerted any influence on the other ADA’s or the proceedings to his detriment. There is no evidence that the Queens County District Attorney’s Office handled defendant’s case in an atypical or inappropriate manner. While the ADA’s action, if proven to be true, may have been improper, they do not suffice to disqualify the Queens County District Attorney’s Office from prosecuting defendant.

In sum, the Court finds that defendant failed to meet his burden of establishing actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence, such as to justify the removal of the Queens County District Attorney’s Office and the appointment of a Special District Attorney; defendant failed to present sufficient evidence of misconduct by the Office to warrant the imposition of sanctions.

Consequently, defendant’s motion to appoint a Special District Attorney is denied; defendant’s motion to sanction the Queens County District Attorney’s Office is also denied; defendant’s motion to stay sentencing pending the appointment of a Special District Attorney is denied as moot; and defendant’s motion to vacate his plea is respectfully referred to the Justice of the Court before whom defendant previously moved for the relief.

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